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State v. Dragon

Supreme Court of Nebraska

February 21, 2014

State of Nebraska, Appellee,
v.
James P. Dragon, Appellant.

Page 619

[Copyrighted Material Omitted]

Page 620

Appeal from the District Court for Douglas County: J. RUSSELL DERR, Judge.

Affirmed.

James P. Dragon, pro se.

Jon Bruning, Attorney General, and Kimberly A. Klein for appellee.

Heavican, C.J., Wright, Connolly, Stephan, McCormack, Miller-Lerman, and Cassel, JJ.

Syllabus by the Court

1. Postconviction: Appeal and Error. In appeals from postconviction proceedings, an appellate court independently resolves questions of law.

2. Postconviction: Constitutional Law. A trial court's ruling that the petitioner's allegations are refuted by the record or are too conclusory to demonstrate a violation of the petitioner's constitutional rights is not a finding of fact-it is a determination, as a matter of law, that the petitioner has failed to state a claim for postconviction relief.

3. Postconviction: Constitutional Law: Appeal and Error. In appeals from post-conviction proceedings, an appellate court reviews de novo a determination that the defendant failed to allege sufficient facts to demonstrate a violation of his or her constitutional rights or that the record and files affirmatively show that the defendant is entitled to no relief.

4. Postconviction: Constitutional Law: Proof. In a motion for postconviction relief, the defendant must allege facts which, if proved, constitute a denial or violation of his or her rights under the U.S. or Nebraska Constitution, causing the judgment against the defendant to be void or voidable.

5. Postconviction: Constitutional Law: Proof. A court must grant an evidentiary hearing to resolve the claims in a postconviction motion when the motion contains factual allegations which, if proved, constitute an infringement of the

Page 621

defendant's rights under the Nebraska or federal Constitution.

6. Postconviction: Appeal and Error. If a postconviction motion alleges only conclusions of fact or law, or if the records and files in the case affirmatively show that the defendant is entitled to no relief, the court is not required to grant an evidentiary hearing.

7. Constitutional Law: Effectiveness of Counsel. A proper ineffective assistance of counsel claim alleges a violation of the fundamental constitutional right to a fair trial.

8. Effectiveness of Counsel: Proof: Appeal and Error. To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington,466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the defendant must show that his or her counsel's performance was deficient and that this deficient performance actually prejudiced the defendant's defense. A court ...


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